State ex rel. Clement v. Paris Railway Co.

55 Tex. 76 | Tex. | 1881

Gould, Associate Justice.

We agree with the district court in its opinion that this suit could only be instituted, on behalf of the state, by the attorney general, or by his direction.

As this is not an information or proceeding in quo warranto to forfeit the franchise of the railway company, the authority to institute it is not affected by the provisions of the act on that subject. R. S., Appendix, p. 47. The only relief sought by the petition was to enjoin the company from constructing its road at a certain point in the city of Paris, on the ground that it was proceeding to do so without any authority of law, and would thereby obstruct the street, and sidewalk, create a public nuisance and cause irreparable damage. Clearly this is not a proceeding under the statute referred to.

The constitution, defining the duties of the attorney general, says: “ He shall represent the state in all suits and pleas in the supreme court of the state, in which the state may be a party, and shall especially inquire into the charter rights of all private corporations, and from time to time, in the name of the state, take such action in the courts as may be proper and necessary to prevent any private corporation from exercising any power, or demanding or collecting any species of taxes, tolls, freight or wharfage not authorized by law.” Const., art. IV, sec. 22; R. S., arts. 2806, 2797, 2798.

We think it manifest that the institution of suits in the name of the state to enjoin private corporations from exceeding their powers and thereby creating public nuisances, is such action as, under this section of the constitution, it is for the attorney general to take, or cause to be taken, when, in his judgment, it may be proper and necessary. The power given county attorneys “to represent the state in all cases in the district and inferior courts in their respective countiés ” (Const., art. V, sec. 21), does not extend to the institution of suits like this, unless it be done with the sanction and in the name of the attorney general. Whether the name of the state shall be used to enjoin, without bond, the construction of a railway, may be a matter of great importance both to the corporation and the public, and we think has appropriately been left to the determination of the attorney general.

This action was brought in the name of the state by the county attorney of Lamar county, on the relation of S. E. Clement and other citizens of Paris, and as it did not purport to be instituted under authority of the attorney general, we think the court rightly held it unauthorized.

We deem it proper to add that, considering the question as presented in the plaintiffs’ pleadings, we think the ordinance sufficient to authorize the construction of the railway at the point where it was commenced, and that there is no ambiguity in the ordinance authorizing its explanation by parol evidence of representations made prior to its passage, or of the actual intention or understanding of those by whom it was passed, as to the precise point at which the road was to be constructed.

Whether the passage of the ordinance' was procured by fraud, or whether it was passed under a mistake, were not questions properly arising in the case.

The action of the court was equivalent to sustaining the demurrer to the petition, the only relief sought being an injunction, and as the plaintiff declined to amend, the petition was rightly dismissed.

The judgment is affirmed.

Affirmed.

[Opinion delivered April 15, 1881.]